Telangana High Court
Chandrakanth Siddharth Kamble vs The State Of Telangana on 7 June, 2024
Author: K. Lakshman
Bench: K. Lakshman, P. Sree Sudha
IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT: HYDERABAD
CORAM:
* THE HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE P. SREE SUDHA
+ WRIT PETITION NO.33560 OF 2023
% Delivered on:07.06.2024
Between:
# Chandrakanth Siddharth Kamble .........Petitioner
And
$ The State of Telangana rep.
by Principal Secretary
and others, .............Respondents.
! For Petitioner : Sri A.venkatesh,
Ld.Sr.Counsel representing
Sri R.Anurag, Ld. Counsel,
^ For Respondents : Sri Swaroop Oorella,
Special Govt.Pleader
< Gist :
> Head Note :
? Cases Referred :
1
(2008) 3 SCC 613
2
(2006) 8 SCC 212
3
2023 INSC 734
4
AIR 2007 SC 861
5
(1982) 2 SCC 403
6
(1974) 1 SCC 195
7
(1966) 1 SCR 709
8
(1970) 1 SCC 98
9
(1992) 2 SCC 177
10.
(2011) 5 SCC 244
11
(1972) 3 SCC 831
12
2022 SCC OnLine SC 1333
13
(1984) 3 SCC 14
14
(2021) 9 SCC 415
15
2022 SCC OnLine SC 424
2
16
(1980) 4 SCC 531
17
(2018) 12 SCC 150
18
1992 (Suppl.1) SCC 496
19
WRIT PETITION (CRL.) NO.77 OF 2008, Supreme Court of India.
20
(2017) 13 SCC 519
21
(2015) 13 SCC 722
22
(2023) 9 SCC 587
3
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE P. SREE SUDHA
WRIT PETITION No.33560 OF 2023
ORDER:
(Per Hon'ble Sri Justice K. Lakshman)
Heard Sri A. Venkatesh, learned Senior Counsel, representing
Sri R.Anurag, learned Counsel for petitioners and Sri Swaroop Oorilla,
learned Special Government Pleader, representing Additional Advocate
General, for respondents.
2. This Writ Petition is filed by the petitioner to declare/quash the
Preventive Detention Order dated 02.06.2021 bearing No. 65/PD
CELL/CYB/2021 issued and also proclamation notice dated 24.01.2023
bearing No.65/PD.Cell/CYB/ 2021-23 issued by 2nd respondent, as
illegal.
FACTS:-
3. The petitioner engaged in the garment trading business in the
State of Maharashtra for the past decade. However, he was surprised to
see proclamation notice dated 24.01.2023 bearing No. 65/PD-
Cell/CYB/2021-23 affixed to the wall of his house in the first week of
April 2023. Allegedly, a Preventive Detention order was issued against
him on 02.06.2021, declaring him as a Fake Document Offender under
the Act by Respondent No. 2 herein.
4. The petitioner contends that in the proclamation notice, it is
alleged that notices issued against him have been returned unserved
despite all possible efforts, and he has been wilfully absconding and
concealing himself to evade the execution of the alleged detention order
dated 02.06.2021, thereby obstructing the process of law.
5. Upon perusing the contents of the proclamation notice, he
immediately made efforts to obtain a copy of detention order No. 65
through an Advocate. He had filed an application under the Right to
Information Act, 2005 (hereinafter referred to as the "RTI Act") to the
Public Information Officer, PD Cell of Respondent No. 2, requesting to
provide the following information:
a. Provide a copy of Detention Order No. 65 passed under the Act
by the PD Cell of Cyberabad, undersigned at the office of 2nd
respondent.
b. Provide detailed information about the grounds of detention
under the Act, recorded before the issuance of the preventive
detention order.
c. Provide a copy of the proceedings for the detention.
6. The petitioner states that, subsequently, he was informed that the
RTI application was transferred to the Public Information Officer, ACP
CCRB via C.No.A6/94/RTI/Cyb/2023 dated 20.04.2023. The 2nd
respondent issued a reply dated 05.05.2023, bearing C.No.A-
6/94/RTI/Cyb/2023, stating that the information sought is related to the
Special Branch (SB) and is exempted from furnishing under sub-section
(4) of Section 24 of the RTI Act, 2005, and as per G.O. Ms. No. 667,
General Administration (GPM & AR) Department dated 30.09.2007 of
the Government of Andhra Pradesh. In the reply letter dated 05.05.2023
stated that such information cannot be furnished as it pertains to a third
party and the detention order was still not executed.
7. The petitioner contends that the Preventive Detention order is
causing serious injury to his life and liberty as a citizen. It is an extreme
measure employed by the State when ordinary criminal law is
insufficient to control activities causing disturbance to Public Order.
The State has sufficient remedies available under the general laws for
any omission or commission, and arbitrarily labelling the petitioner as a
fake document offender without specifying the alleged crimes, is unjust.
In the present case, there is no disturbance to Public Order and not
affected the maintenance of Law and Order. Therefore, the order of
detention based on a solitary crime and the consequential Preventive
Detention orders are unlawful.
8. The petitioner herein filed W.P.No.32202/2023 challenging the
proclamation notice dated 24.01.2023 in order to procure a copy of
Preventive Detention order. This Court, vide order dated 22.11.2023,
disposed of the same holding as follows:
"This Court without expressing any opinion on merits of the
case, deems it appropriate to dispose of the Writ Petition granting liberty
to the petitioner to approach the 2" respondent for receiving the copy of
the Preventive Detention Order within a period of two (02) weeks from
today. Further, the impugned notice issued vide Proceedings No.65/PD-
Cell/CYB/2021-23 dated 24.01.2023 is hereby suspended for a period of
two (2) weeks. It is made clear that in the event of the petitioner
approaches 2nd respondent to receive copy of the Preventive Detention
Order, the 2 respondent shall not arrest the petitioner for a period of one
week, subject to the petitioner giving an undertaking that he will
surrender himself immediately after expiry of one week. It is also made
clear that if the petitioner does not approach respondent No.2 to receive a
copy of the Preventive Detention Order within the aforesaid period of
two weeks, the respondent authorities are at liberty to proceed further
against the petitioner, in accordance with law."
9. The petitioner approached the 2nd respondent on 06.12.2023.
Respondent No. 2 served a copy of the Preventive Detention order dated
02.06.2021 and the petitioner received a copy of the detention order,
providing an undertaking that he would surrender himself immediately
after one week. However, instead of surrendering himself after one
week from 06.12.2023, the petitioner filed the present writ petition on
11.12.2023.
10. Respondents mechanically issued the proclamation notice
without making any attempt to serve the Preventive Detention order.
Mere allegation of creating fake documents does not warrant invoking
the Act by the respondents, which is a gross abuse of statutory power.
Therefore, the Preventive Detention order and proclamation notice
issued are ex-facie illegal and ought to be set aside as the order passed
by Respondent No. 2 is based on false and baseless allegations
11. 2nd respondent filed counter denying the allegations made by
the petitioner and contending as follows:-
i. The petitioner is a Fake Document Offender as he has purportedly
engaged in a series of unlawful activities, including forgery and
swapping SIM cards of unknown persons linked to their bank
accounts. These actions resulted in fraudulent transfers of funds,
causing financial loss amounting to lakhs of rupees to the
unsuspecting public. These activities were carried out in an
organized manner within the jurisdiction of the Cyberabad Police
Commissioner, leading to widespread panic and insecurity among
the public, which is prejudicial to the maintenance of Public
Order.
ii. In the year 2020, within a span of four months, the petitioner was
purportedly involved in two cases registered by the Cyber Crime
Police Station vide Cr.Nos.584 of 2020 for the offences
punishable under sections 420, 468, 471 and 120-B of IPC and
Section 66-C of the Information Technology Act (IT Act).
iii. The allegations levelled against the petitioner are that he has
repeatedly engaged in the cases of forgery, swapping of SIM
cards of unknown persons linked to their bank accounts, resulting
in substantial financial losses to the public. Such acts of the
petitioner disturbed peace and tranquillity in the society. Thus,
prejudicing the maintenance of Public Order within the
jurisdiction of Cyberabad Police Commissioner.
iv. The said acts of the petitioner fall under the definition of a fake
document offender as per Section-2 (p) of the Telangana
Prevention Of Dangerous Activities of Boot-Leggers, Dacoits,
Drug Offenders, Goondas, Immoral Traffic Offenders Land-
Grabbers, Spurious Seed Offenders, Insecticide Offenders,
Fertiliser Offenders, Food Adulteration Offenders, Fake
Document Offenders, Scheduled Commodities Offenders, Forest
Offenders, Gaming Offenders, Sexual Offenders, Explosive
Substances Offenders, Arms Offenders, Cyber Crime Offenders
And White Collar Or Financial Offenders Act, 1986 (Act No. 1 of
1986) (Hereinafter referred to as "the Act") Act, which defines a
person who creates false documents with an intent to cause
damage or injury to the public or any person, or to induce
someone to part with property, or to enter into any express or
implied contract, or commits offenses punishable under Chapter
XVIII of the IPC, or abets in doing such offenses.
v. Invoking the provisions of the Act against the petitioner is
necessary to prevent him from engaging in activities prejudicial to
the maintenance of Public Order. Ordinary laws under which the
petitioner is charged are deemed insufficient to curb his alleged
dangerous and unlawful activities, necessitating his prevention
under the detention laws.
vi. Petitioner was arrested on 20.01.2021 at 1700 hours in Cr.No. 584
of 2020 and remanded to Judicial Custody on 21.01.2021. The
petitioner's arrest was regularized in Cr. No. 1021 of 2020
registered for the offences punishable under Section 420 of IPC
and Section 66-C and D of IT Act. Now the petitioner is lodged in
Dhanbad Prison, Kasturiba Nagar, Jharkhand, in Cr. No. 70 of
2020 registered for the offences punishable under Section 419,
420, 467, 468, 471, 120(B) IPC, and Section 66 (C) and 66 (D) of
IT Act, 2000-2008 of Cyber Crime PS, Dhanbad.
vii. In Cr. No. 584 of 2020, the petitioner filed two bail petitions vide
Crl.M.P.Nos.60 of 2021 and 121 of 2021. The Court granted bail
imposing certain conditions that he shall execute a personal bond
for Rs.30,000/- each with two sureties for likesum each. The
petitioner was also required to appear before the concerned
Station House Officer every Wednesday between 11:00 am to
05:00 pm till filing of the charge sheet and furnish the required
sureties to obtain the release order on 08.03.2021 in Cr. No. 1021
of 2020. The petitioner filed a bail petition vide Crl M.P.No. 118
of 2021. The trial Court granted bail imposing certain conditions.
viii. The petitioner was previously involved in three other offenses.
Viz: Cr.Nos.107 of 2016 for the offences punishable under
Sections 419, 420, 465, 467, 468, 471 read with 34 IPC of Cyber
Crime Police Station, Mumbai; Cr.No.02 of 2020 for the offences
punishable under Sections 465, 468, 471, 420 IPC, and Section 66
(D) and (C) of IT Act, 2000 of Cyber Crime Police Station,
Thrissur, Kerala, and Cr.No.70 of 2020 for the offences
punishable under Sections 419, 420, 467, 468, 471, 120 (B) IPC,
and Section 66 (C) and 66(D) of IT Act, 2000-08 of Cyber Crime
P.S. Dhanbad.
ix. In a series of forgery offenses, including swapping cards of
unknown persons linked to their bank accounts, resulting in
substantial financial losses to the public. Considering the bail
petitions filed by the petitioner in the aforementioned cases and
the possibility of the petitioner furnishing required sureties for
release from jail, Respondent No. 2 believes that the petitioner's
unrestricted movement poses a risk to the society. There is a
likelihood of the petitioner engaging in similar prejudicial
activities, such as impersonation and fraudulent financial
transactions, which could disrupt Public Order. Thus, it is
necessary to prevent him from doing so through appropriate
detention.
12. Sri A.Venkatesh, learned Senior counsel appearing for the
petitioner contends as follows:-
i. Criminal law was already set in motion.
ii. There is no disturbance to the Public Order due to the
alleged acts committed by the petitioner.
iii. At the most, the said acts come under the purview of the
Law and Order.
iv. Bail was granted to the petitioner in both the crimes relied
upon by the 2nd respondent in issuing impugned detention
order.
v. The allegations levelled against the petitioner herein are
that he has committed forgery and swapping of SIM cards
of individuals linked to their bank accounts, resulting in
fraudulent transactions amounting to approximately Rs.2
Crores. The said allegations are at the most amounts to Law
and Order, but not to Public Order.
vi. The Investigating Officers have not filed any application
seeking cancellation of bail on the ground that the
petitioner has violated the conditions imposed by the
learned Magistrate while granting bail.
vii. There is violation of Section 3(3) of the Act. Relevant
material was not placed before the Advisory Board.
Therefore, the Advisory Board was not having an occasion
to examine the material placed before it before granting
approval vide G.O.Rt.No.1266, dated 10.06.2021.
viii. 2nd respondent has revoked the detention order issued
against co-accused vide order dated 04.09.2021.
ix. 2nd respondent cannot refer the cases which are not within
his jurisdiction.
x. Thus, the impugned detention order is in violation of
Section 6(a) and (b) of the Act.
xi. Section 1(2) of the Act says that the Act extends to the
whole of the State of Telangana. Therefore, 2nd respondent
cannot even refer the cases which are outside his
jurisdiction.
xii. Section 6 of the Act says that Detention Order not to be
invalid or inoperative on certain grounds. No detention
order shall be invalid or inoperative merely by reason that
the person to be detained thereunder, though within the
State, is outside the limits of the territorial jurisdiction of
the officer making the order, or the place of detention of
such person though within the State, is outside the said
limits.
xiii. The petitioner is resident of Maharashtra. Therefore, 2nd
respondent is not having jurisdiction to issue the impugned
detention order.
13. Sri Swaroop Oorilla, learned Special Government Pleader,
contends as follows:-
i. The present writ petition is not maintainable since it is at
pre-execution stage.
ii. The petitioner has violated the order dated 22.11.2023 in
W.P.No.32203 of 2023. The allegations levelled against the
petitioner herein are serious in nature and due to the said
acts, there was fear in the minds of the general public.
Therefore, there is public disorder.
iii. To prevent the petitioner in committing such offences, the
impugned detention order was passed by the 2nd
respondent. There is no error in it.
iv. The Preventive Detention order can be passed even relying
on solitary crime/incident. In the present case, 2nd
respondent has relied on two cases where the allegations
are serious against the petitioner herein. Non-filing of
applications seeking cancellation of bail is not a ground to
challenge the impugned detention order. It is altogether
different aspect.
14. With the said submissions, he sought to dismiss the present
writ petition.
15. It is relevant to note that vide order dated 22.11.2023, this
Court granted liberty to the petitioner to approach 2nd respondent for
receiving a copy of the Preventive Detention order within a period of
two weeks from that day. The impugned order was suspended for a
period of two weeks. 2nd respondent was also directed to furnish a copy
of the order to the petitioner in case the petitioner approaches him to
receive a copy of the order and also not to arrest the petitioner for a
period of one week subject to the petitioner giving undertaking that he
will surrender himself immediately after expiry of one week.
16. Thus, this Court granted protection to the petitioner for a
period of two weeks. He has filed the present writ petition on
11.12.2023 itself and this Court granted interim order. Therefore, the
said contention of the learned Special Government Pleader that the
petitioner filed the present writ petition without surrendering himself, is
not acceptable.
17. It is further contended that the Preventive Detention Order
was validly issued by the competent authority, which cannot be
invalidated due to the petitioner's evasion of arrest. The petitioner
should not be allowed to yield benefit from his own wrongdoing.
18. Perusal of the impugned Preventive Detention order would
reveal that the 2nd respondent had issued the said order relying on the
following cases:-
i) Cr.No.584 of 2020 for the offences punishable under sections
420, 468, 471 and 120-B of IPC and Section 66-C of the IT
Act, pending on the file of Cyber Crime Police Station.
ii) Cr.No.1021 of 2020 for the offences punishable under section
420 of IPC and Section 66-C and D of IT Act,
19. In both the said crimes, allegations levelled against the
petitioner are that he along with others committed forgery and swapping
of SIM cards of unknown persons which are linked to their bank
accounts resulting in fraudulent transactions thereby cheated the public
to the tune of Rs.2 Crores.
20. It is relevant to note that in both the crimes, learned
Magistrates have granted bail to the petitioner herein on imposition of
certain conditions. The Investigating Officers in the said crimes did not
file any applications seeking cancellation of bail on the ground that the
petitioner has violated the conditions imposed in the orders while
granting bail and that the petitioner has committed similar offences
while he was on bail.
21. There is no dispute with regard to the legal position that even
relying on the solitary crime, the Preventive Detention order can be
passed. At the same time, detaining authority has to consider the entire
material placed before him, the allegations levelled against the
petitioner, nature of the allegations and come to a conclusion that the
due to the said acts of the petitioner, there is disturbance to the Public
Order. He has to record the subjective satisfaction in the order. He has to
issue the Preventive Detention order, only to prevent the petitioner from
committing similar offences.
22. In the present case, there is no consideration of the said
aspects, more particularly, the aspect that the 2nd respondent on
consideration of entire material placed before him came to a subjective
satisfaction that due to the acts committed by the petitioner there is
disturbance to the Public Order.
23. As rightly contended by the learned senior counsel for the
petitioner that the aforesaid two crimes were registered basing on the
complaints given by two complainants and the criminal law was already
set on motion.
24. As rightly contended by Sri A.Venkatesh, learned Senior
Counsel that the Act extends to the whole of the State of Telangana. 2nd
respondent has no jurisdiction to take cognizance of the
offences/events/incidents outside his jurisdiction.
25. Section 2(p) of the Act deals with the definition of 'Fake
Document Offender' and the same is relevant and is extracted below:-
"Fake Document Offender" means a person who makes any
damage or injury, to the public or to any person, or to support any
claim or title, or to cause any person to part with property, or to enter
into any express or implied contract, or commits the offence
punishable under Chapter-XVIII of the IPC or who abets in doing
such things/offences:
26. There is no consideration of the said contents by the 2nd
respondent while issuing the impugned detention order.
27. It is also relevant to note that Section 3(3) of the Act says that
the detention order shall remain in force for a period of 12 days after
issuing the said order unless in the meantime it has been approved by
the Government. In the present case, the impugned order is dated
02.06.2021 and it was approved by the Board vide GO.Rt.No.1266,
dated 10.06.2021. Therefore, there is no violation of Section 3(3) of the
Act by the respondents as contended by the learned counsel for the
petitioner.
28. Preventive Detention is often referred as Jurisdiction of
Suspicion as held by the Apex Court in State of Maharashtra Vs.
Bhaurao Punjabrao Gawande, 1 It must be remembered that in cases
of preventive detention, no offence is proved and the justification of
such detention is suspicion or reasonable probability.
29. The Constitution Bench of Apex Court in M. Nagaraj Vs.
Union of India 2 observed :
"It is a fallacy to regard fundamental rights as a gift from the State to its
citizens. Individuals possess basic human rights independently of any
Constitution by reason of the basic fact that they are members of the
human race."
30. Three-Judge Bench of the Apex Court in Pesala Nookaraju v
Govt. of Andhra Pradesh3 examined the essential concept of
preventive detention as:
"17....the detention of a person is not to punish him for something he has
done but to prevent him from doing it. The basis of detention is the
satisfaction of the executive of a reasonable probability of the likelihood
of the detenu acting in a manner similar to his past acts and preventing
him by detention from doing the same. A criminal conviction on the
(2008) 3 SCC 613
(2006) 8 SCC 212
2023 INSC 734
other hand is for an act already done which can only be possible by a trial
and legal evidence. There is no parallel between the prosecution in a
Court of law and a detention order under the Act 1986. One is a punitive
action and the other is a preventive act. In one case a person is punished
on proof of his guilt and the standard is proof beyond the reasonable
doubt, whereas in the other a person is detained with a view to prevent
him from doing such act(s) as may be specified in the Act authorizing
preventive detention."
31. Nine-Judge Constitution Bench of Apex Court in I.R. Coelho
v. State of T.N. 4 observed as follows:
"109. ......It is necessary to always bear in mind that fundamental rights
have been considered to be (the) heart and soul of the Constitution.
49. ..... Fundamental rights occupy a unique place in the lives of civilized
societies and have been described in judgments as "transcendental",
"inalienable", and primordial."
32. In Ashok Kumar v. Delhi Administration,5 the Apex Court
observed that preventive detention is devised to afford protection to
society. The object is not to punish a man for having done something
but to intercept before he does it and to prevent him from doing.
33. In Kuso Sah vs. The State of Bihar6, the Apex Court held that
infractions of law are bound in some measure to lead to disorder but
every infraction of law does not necessarily result in public disorder.
AIR 2007 SC 861
(1982) 2 SCC 403
(1974) 1 SCC 195
The power to detain a person without the safeguard of a court trial is too
drastic to permit a lenient construction and therefore Courts must be
astute to ensure that the detaining authority does not transgress the
limitations subject to which alone the power can be exercised.
34. In Ram Manohar Lohia v. State of Bihar, 7 Constitution
Bench of the Apex Court held that the detaining authority has to
consider the disturbance caused by the acts committed by the detenu.
The detaining authority shall consider the distinction between "Public
Order" and "Law and Order" and further held as follows:-
"54...Does the expression "Public Order" take in every kind of disorder
or only some? The answer to this serves to distinguish "Public Order"
from "Law and Order" because the latter undoubtedly takes in all of
them. Public Order if disturbed, must lead to public disorder. Every
breach of the peace does not lead to public disorder. When two
drunkards quarrel and fight there is disorder but not public
disorder. They can be dealt with under the powers to maintain Law
and Order but cannot be detained on the ground that they were
disturbing Public Order. Suppose that the two fighters were of rival
communities and one of them tried to raise communal passions. The
problem is still one of Law and Order but it raises the apprehension
of public disorder. Other examples can be imagined. The
contravention of law always affects order but before it can be said to
affect Public Order, it must affect the community or the public at
large. A mere disturbance of Law and Order leading to disorder is thus
(1966) 1 SCR 709
not necessarily sufficient for action under the Defence of India Act but
disturbances which subvert the Public Order are. A District Magistrate is
entitled to take action under Rule 30(1)(b) to prevent subversion of
Public Order but not in aid of maintenance of Law and Order under
ordinary circumstances.
55. It will thus appear that just as "Public Order" in the rulings of this
Court (earlier cited) was said to comprehend disorders of less gravity
than those affecting "security of State", "Law and Order" also
comprehends disorders of less gravity than those affecting Public Order".
One has to imagine three concentric circles. Law and Order
represents the largest circle within which is the next circle
representing Public Order and the smallest circle represents security
of State. It is then easy to see that an act may affect Law and Order
but not Public Order just as an act may affect Public Order but not
security of the State."
35. Similar view was reiterated by the Apex Court in Arun Ghosh
v. State of West Bengal. 8
36. The Apex Court in Harpreet Kaur (Mrs) v. State of
Maharashtra, 9 distinguished difference between 'Public Order' and
'Law and Order'
24. Crime is a revolt against the whole society and an attack on the
civilisation of the day. Order is the basic need of any organised civilised
society and any attempt to disturb that order affects the society and the
community. The distinction between breach of 'Law and Order' and
(1970) 1 SCC 98
(1992) 2 SCC 177
disturbance of 'Public Order' is one of degree and the extent of
reach of the activity in question upon the society. In their essential
quality, the activities which affect 'Law and Order' and those which
disturb 'Public Order' may not be different but in their potentiality
and effect upon even tempo of the society and public tranquillity
there is a vast difference. In each case, therefore, the courts have to
see the length, magnitude and intensity of the questionable activities
of a person to find out whether his activities are prejudicial to
maintenance of 'Public Order' or only 'Law and Order'.
37. The Apex Court in Rekha vs. State of Tamil Nadu10, held that:-
" 29. Preventive detention is, by nature, repugnant to democratic ideas
and an anathema to the Rule of law. No such law exists in the USA and
in England (except during war time). Since, however, Article 22(3)(b) of
the Constitution of India permits preventive detention, we cannot hold it
illegal but we must confine the power of preventive detention within
very narrow limits, otherwise we will be taking away the great right to
liberty guaranteed by Article 21 of the Constitution of India which was
won after long, arduous and historic struggles. It follows, therefore, that
if the ordinary law of the land (the Penal Code and other penal statutes)
can deal with a situation, recourse to a preventive detention law will be
illegal."
30. Whenever an order under a preventive detention law is challenged
one of the questions the court must ask in deciding its legality is: was the
ordinary law of the land sufficient to deal with the situation? If the
answer is in the affirmative, the detention order will be illegal. In the
present case, the charge against the detenu was of selling expired drugs
after changing their labels. Surely the relevant provisions in the Penal
Code and the Drugs and Cosmetics Act were sufficient to deal with this
(2011) 5 SCC 244
situation. Hence, in our opinion, for this reason also the detention order
in question was illegal."
38. In Kanu Biswas v. State of W.B., 11 the Apex Court relying on
Ram Manohar Lohia (supra) noted that preventive detention can only
be invoked in cases of breach of Public Order. The Court explained the
difference between Law and Order and Public Order by stating that
Public Order is said to be affected when the action of the detenu is in the
nature of adversely affecting the even tempo of life of the community
which causes a general disturbance of public tranquility. The relevant
paragraphs are extracted below:
"7. The question whether a man has only committed a breach of Law and
Order or has acted in a manner likely to cause a disturbance of the Public
Order, according to the dictum laid down in the above case, is a question
of degree and the extent of the reach of the act upon the society. Public
Order is what the French call "order public" and is something more than
ordinary maintenance of Law and Order. The test to be adopted in
determining whether an act affects Law and Order or Public Order,
as laid down in the above case, is: Does it lead to disturbance of the
current of life of the community so as to amount to a disturbance of
the Public Order or does it affect merely an individual leaving the
tranquillity of the society undisturbed?"
(1972) 3 SCC 831
39. In Sushanta Kumar Banik v. State of Tripura,12 the Apex
Court held that the preventive detention is a serious invasion of personal
liberty and the normal methods open to a person charged with
commission of any offence to disprove the charge or to prove his
innocence at the trial are not available to the person preventively
detained and, therefore, in prevention detention jurisprudence, whatever
little safeguards the Constitution and the enactments authorizing such
detention provide assume utmost importance and must be strictly
adhered to.
40. In Vijay Narain Singh v. State of Bihar, 13 a three Judge
Bench of the Apex Court had an occasion to deal with the expression
'habitually' and held that the expression 'habitually' would mean
'repeatedly' or 'persistently' implying a thread of continuity, stringing
together similar repetitive acts, and a single act or omission would not
characterize as an act of 'habitual'. The Apex Court was of the opinion
that to qualify as a 'habit', a person must have grown accustomed to
leading a life of crime, whereby it would be a force of habit, inherent or
2022 SCC OnLine SC 1333
(1984) 3 SCC 14
latent, in an individual with a criminal instinct, with a criminal
disposition of mind, that makes him as dangerous to society in general.
41. In Banka Sneha Sheela v. State of Telangana, 14 the Apex
Court held as under:
"13. There can be no doubt that for 'Public Order' to be disturbed, there
must in turn be public disorder. Mere contravention of law such as
indulging in cheating or criminal breach of trust certainly affects 'Law
and Order' but before it can be said to affect 'Public Order', it must
affect the community or the public at large."
"24. On the facts of this case, as has been pointed out by us, it is clear
that at the highest, a possible apprehension of breach of Law and
Order can be said to be made out if it is apprehended that the
Detenu, if set free, will continue to cheat gullible persons. This may
be a good ground to appeal against the bail orders granted and/or to
cancel bail but certainly cannot provide the springboard to move
under a preventive detention statute. We, therefore, quash the
detention order on this ground. Consequently, it is unnecessary to go
into any of the other grounds argued by the learned counsel on behalf of
the Petitioner. The impugned judgment is set aside and the Detenu is
ordered to be freed forthwith. Accordingly, the appeal is allowed."
42. In Mallada K. Sri Ram vs. State of Telangana 15, upon
examination of the facts of the case, the Apex Court held in paragraph
No.12 as follows:
(2021) 9 SCC 415
2022 SCC OnLine SC 424
"12. There is absolutely no doubt in our mind that the facts and
circumstances of the case as alleged in the detention order dated
28.10.2021 though does reflect a Law and Order situation which can be
dealt with under the ordinary law of land, and there was absolutely no
occasion for invoking the extraordinary powers under the law of
Preventive Detention. The reasons assigned by the authority in its
detention, justifying the invocation of the provisions of the detention law
are that the detenu has been granted bail in all the four cases and since he
is likely to indulge in similar crime, hence the order of preventive
detention."
43. The Apex Court held that a mere apprehension of a breach of
Law and Order is not sufficient to meet the standard of adversely
affecting the "maintenance of Public Order". Referring to the principle
laid down by it in Ram Manohar Lohia(supra) and Banka Sneha
Sheela (supra), the distinction between a disturbance to Law and Order
and a disturbance to Public Order was discussed.
44. The Apex Court and this Court time and again held that the
detention orders shall be passed in rarest of rare cases that too, to
prevent the detenu from committing similar offences which may disturb
the Public Order. Also that there is a vast difference between "Law and
Order" and "Public Order". The offences which are committed against a
particular individual fall within the ambit of "Law and Order". It is only
when the public at large is adversely affected by the criminal activities
of a person, the conduct of a person is said to disturb the "Public Order".
Moreover, individual cases can be dealt with by the criminal justice
system. Therefore, there is no need for the detaining authority to invoke
the provisions of the Act, 1986 for passing order of detention against an
individual. Invoking of such law adversely affects the fundamental right
of personal liberty which is guaranteed and protected by Article 21 of
the Constitution of India. The powers of preventive detention are
exceptional and even draconian. Tracing their origin to the colonial era,
they have been continued with strict constitutional safeguards against
abuse. Article 22 of the Constitution was specifically inserted and
extensively debated in the Constituent Assembly to ensure that the
exceptional powers of preventive detention do not devolve into a
draconian and arbitrary exercise of state authority. The case at hand is a
clear example of non-application of mind to material circumstances
having a bearing on the subjective satisfaction of the detaining authority.
45. In Icchu Devi Choraria vs. Union of India 16, the Apex Court
the judicial commitment to strike down illegal detention in paragraph
No.5 enumerated as in under;
(1980) 4 SCC 531
"5. .... The burden of showing that the detention is in accordance with
the procedure established by law has always been placed by this Court on
the detaining authority because Article 21 of the Constitution provides in
clear and explicit terms that no one shall be deprived of his life or
personal liberty except in accordance with procedure established by law.
This constitutional right of life and personal liberty is placed on such
a high pedestal by this Court that it has always insisted that
whenever there is any deprivation of life or personal liberty, the
authority responsible for such deprivation must satisfy the court that
it has acted in accordance with the law. This is an area where the
court has been most strict and scrupulous in ensuring observance
with the requirements of the law, and even where a requirement of
the law is breached in the slightest measure, the court has not
hesitated to strike down the order of detention or to direct the
release of the detenu even though the detention may have been valid
till the breach occurred. The court has always regarded personal
liberty as the most precious possession of mankind and refused to
tolerate illegal detention, regardless of the social cost involved in the
release of a possible renegade."
46. In a different context, in Sama Aruna vs. State of
Telangana17 while considering the circumstances of preventive
detention and the prognosis to be adopted by the detaining authorities
was enumerated by the Apex Court in paragraph No.16 which is as
follows:-
"The detention order must be based on a reasonable prognosis of the
future behaviour of a person based on his past conduct in light of the
(2018) 12 SCC 150
surrounding circumstances. The live and proximate link that must exist
between the past conduct of a person and the imperative need to
detain him must be taken to have been snapped in this case. A
detention order which is founded on stale incidents, must be
regarded as an order of punishment for a crime, passed without a
trial, though purporting to be an order of preventive detention.
47. Learned Special Government Pleader relied on the principle
laid down by the Apex Court in Additional Secretary to the
Government of India vs. Smt. Alka Subhash Gadia 18 and contended
that this Court cannot interfere with the order at pre-execution stage and
has a limited scope.
48. We have carefully gone through the above observations in
Alka Subhash Gadia's case (supra) and we are of the opinion that the
five grounds mentioned therein on which the Court can set aside the
detention order at the pre-execution stage are only illustrative not
exhaustive as held by the Apex Court in Deepak Bajaj vs State of
Maharashtra 19. Therefore, the contention of the learned Special
Government Pleader that the present writ petition is not maintainable at
a pre-execution stage is unsustainable.
1992 (Suppl.1) SCC 496
WRIT PETITION (CRL.) NO.77 OF 2008, Supreme Court of India.
49. The Apex Court in Lahu Shrirang Gatkal vs State of
Maharashtra 20 while dealing with an issue of non-mentioning the
duration of detention, after considering the principle in Cherukuri Mani
vs. Chief Secretary to Government of A.P. 21, held as follows:-
7. It is well settled that a presumptive legislation such as the present Act
needs to be given a strict interpretation. As noted above proviso to sub-
section (2) of Section 3 prescribes a thing to be done in a particular
manner following a particular procedure. Therefore, the proviso to sub-
section (2) of Section 3 envisages a period to be specified in the order
with a maximum cap of six months at the first instant. From the above
analysis, it is clear that respondent No. 3 could not have passed such
a blanket order of detention without specifying the period of
detention, as has been done in this case."
50. In view of the above settled law, coming to the case on hand,
perusal of the detention order issued by respondent No.2 and the
subsequent approval order from Government, it is evident that there is
no mention of the duration of the detention. Thus, both the said orders
passed by the relevant authorities are not in accordance with the
provisions of law.
51. It is regrettable that despite the directives of the Apex Court and
this Court, preventive detention continues to be routinely invoked by the
(2017) 13 SCC 519
(2015) 13 SCC 722
authorities in the State of Telangana. As stated supra, preventive
detention should only be used in the most exceptional circumstances. It
is only when an individual's actions have the potential to affect Public
Order that preventive detention may be warranted. This Court has
observed on numerous occasions that authorities often fail to
differentiate between actions that impact Law and Order and those that
impact Public Order. Therefore, it is imperative that the officers
responsible for issuing detention orders are properly educated about the
severe nature of preventive detention. Additionally, it is expected that
authorities will accurately distinguish between situations involving Law
and Order and those involving Public Order before ordering detention.
52. In Ameena Begum vs. State of Telangana 22, the Apex Court
issued guidelines to be examined by any Constitutional Court when
called upon to test the legality of the detention order and the said
guidelines are as follows:-
(i) the order is based on the requisite satisfaction, albeit
subjective, of the detaining authority, for, the absence of such
satisfaction as to the existence of a matter of fact or law, upon
which validity of the exercise of the power is predicated,
(2023) 9 SCC 587
would be the sine qua non for the exercise of the power not
being satisfied;
(ii) in reaching such requisite satisfaction, the detaining authority
has applied its mind to all relevant circumstances and the same
is not based on material extraneous to the scope and purpose
of the statute;
(iii) power has been exercised for achieving the purpose for which
it has been conferred, or exercised for an improper purpose,
not authorised by the statute, and is therefore ultra vires;
(iv) the detaining authority has acted independently or under the
dictation of another body;
(v) the detaining authority, by reason of self-created rules of
policy or in any other manner not authorized by the governing
statute, has disabled itself from applying its mind to the facts
of each individual case;
(vi) the satisfaction of the detaining authority rests on materials
which are of rationally probative value, and the detaining
authority has given due regard to the matters as per the
statutory mandate;
(vii) the satisfaction has been arrived at bearing in mind existence
of a live and proximate link between the past conduct of a
person and the imperative need to detain him or is based on
material which is stale;
(viii) the ground(s) for reaching the requisite satisfaction is/are such
which an individual, with some degree of rationality and
prudence, would consider as connected with the fact and
relevant to the subject-matter of the inquiry in respect whereof
the satisfaction is to be reached;
(ix) the grounds on which the order of preventive detention rests
are not vague but are precise, pertinent and relevant which,
with sufficient clarity, inform the detenu the satisfaction for
the detention, giving him the opportunity to make a suitable
representation; and
(x) The timelines, as provided under the law, have been strictly
adhered to. Should the Court find the exercise of power to be
bad and/or to be vitiated applying any of the tests noted above,
rendering the detention order vulnerable, detention which
undoubtedly visits the person detained with drastic
consequences would call for being interdicted for righting the
wrong.
53. In similar circumstances, this Court vide order dated 14.06.2023
in W.P.No.8486 of 2023 after elaborately referring to catena of
principles laid down by the Apex Court, issued the following
directions:-
i. The authorities before ordering detention shall distinguish
between a Law and Order situation and a Public Order
situation keeping in view the aforesaid discussion;
ii. Grounds of detention shall be informed to the detenu at the
earliest including the opportunity such detenu has to make a
representation to the Advisory Board against the order of
detention;
iii. The detention order shall be placed for review before the
Advisory Board at the earliest including the representation of
the detenu, if any;
iv. The Advisory Board before preparing its report on the validity
of the detention order shall consider the entire material placed
before it and shall record a finding how Public Order will be
affected if the detention is not confirmed;
v. The Advisory Board shall also hear the detenu, if such detenu
seeks a hearing. This Court would like to further stress that the
detenu shall be informed about his right to be heard before the
Advisory Board;
vi. The Advisory Board's report shall state reasons for its
conclusions as it performs a quasi-judicial function.
54. As discussed supra, there is no consideration of the said
aspects in the present case while issuing impugned detention order by
2nd respondent.
55. Even after issuance of the said directions by this Court, the
State is issuing Preventive Detention orders in a mechanical manner
without due consideration of the said directions.
56. In catena of judgments, both the Apex Court and this Court
have consistently distinguished between "Law and Order" and "Public
Order." Offences that target specific individuals fall under the category
of "Law and Order." It is only when the criminal activities of an
individual adversely affect the public at large that their conduct is
deemed to disturb "Public Order." Moreover, individual cases can be
addressed by the criminal justice system without the need for resorting
to the draconian preventive detention laws against an individual. The
invocation of such laws undermines the fundamental right to personal
liberty guaranteed and protected by Article 21 of the Constitution of
India.
57. Coming to the case on hand, though the detenu was released on
bail on 08.03.2021, the detention order was passed only on 02.06.2021.
In fact, if the detenu was absconding and was not available for the
service of the Preventive Detention order, the authorities could have
taken steps for cancellation of the bail and for forfeiture of the surety
amount deposited. Admittedly, no such recourse has been taken. If the
respondents were really sincere and anxious to serve the order of
detention without any delay, it was expected of them to approach the
Court concerned which granted bail for its cancellation, by pointing out
that the detenu had violated the conditions imposed and thereby enforce
his appearance or production as the case may be. Admittedly, no such
steps were taken instead, it was explained that several attempts were
made to serve the copy by visiting his house on many occasions.
58. Without availing the said remedies, respondent No.2 cannot
mechanically pass orders of detention and respondent No.1 cannot
approve the same. Thus, there is no consideration of the aforesaid
aspects and the principle laid down by the Apex Court and the Division
Benches of this Court in the aforesaid decisions. Further, the
respondents have to invoke/pass Preventive Detention orders in rarest of
rare cases.
59. In the present case, the Petitioner was granted bail, after giving
an opportunity of hearing to the State. If the Petitioner subsequently
committed any offence or violated any condition of bail, the State ought
to have approached the concerned Court for cancellation of bail.
Issuance of a Preventive Detention order which drastically curtailed the
Petitioner's right to liberty under Article 21 of Constitution of India, is
certainly neither the most suitable nor the least restrictive method of
preventing the Petitioner from engaging in any further alleged criminal
activity.
60. The cases registered against the petitioner are clearly within the
purview of the standard criminal justice system and, if proved beyond
reasonable doubt, can be appropriately punished by a competent court of
law. Therefore, there was no necessity for the detaining authority to
issue the impugned detention order. We are of the considered view that
the regular laws of the land were adequate to address this matter, and
thus, resorting to preventive detention laws was unwarranted and is
liable to be set aside.
61. As discussed supra, vide order dated 04.09.2021, 2nd respondent
has revoked Preventive Detention order issued against the co-accused of
the petitioner.
62. In the light of the above discussion, noting that the petitioner
herein is already enlarged on bail on 08.03.2021, this Writ Petition is
allowed and the impugned Preventive Detention Order dated 02.06.2021
bearing No. 65/PD CELL/CYB/2021 and also Proclamation Notice
dated 24.01.2023 bearing No.65/PD.Cell/CYB/2021-23 issued by 2nd
respondent, are hereby set aside.
As a sequel thereto, any miscellaneous petitions pending, if any in
this Writ Petition shall stand closed.
_________________________
JUSTICE K. LAKSHMAN
_________________________
JUSTICE P.SREE SUDHA
Date:07.06.2024.
Note. L.R. copy to be marked.
B/o. Vvr
